Madras High Court
Mumtaz Begam vs S.Somu Thevar (Died) on 29 April, 2025
SA(MD)No.470 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 29/04/2025
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
SA(MD)No.470 of 2010
Mumtaz Begam : Appellant/Appellant/
Plaintiff
(Deleted and cause title
amended, vide court order,
dated 08/07/2022 made in
CMP(MD)No.5745 of 2002 in
SA(MD)No.470 of 2010)
Vs.
1.S.Somu Thevar (Died)
2.S.Sivalinga Thevar (Died) : Respondents 1 to 3/
Respondents/
Defendants
3.S.Valli
4.S.Rajkumar
5.S.Geetha
(Respondents 3 to 5 are brought
on record as LR.s of the deceased
1st Respondent, vide Court order,
dated 10/08/2022 made in CMP(MD)
Nos.6081, 6083 and 6085 of 2022
in SA(MD)No.470 of 2010)
6.S.Mugunthan
7.S.Sasikala : Respondents 3 to 7
(Respondents 6 and 7 are
brought on record as LR.s
of the deceased 2nd Respondent,
vide Court order, dated 23/08/2022
made in CMP(MD)Nos.6086, 6087 and
6090 of 2022 in SA(MD)No.470 of 2010)
PRAYER:-Second Appeal is filed under Section 100 of
the Civil Procedure Code, against the decree and
judgment, dated 30/10/2009 made in AS No.14 of 2009 on
the file of the Sub Court, Pattukottai, confirming the
decree and judgment, dated 25/08/2008 made in OS No.146
of 2005 on the file of the District Munsif, Pattukottai.
1/21
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SA(MD)No.470 of 2010
For Appellant : Mr.P.Thiagarajan
For R1 and R2 : Died
For R3 to R5 : Mr.V.Meenakshi Sundaram
For R6 and R7 : No appearance
J U D G M E N T
This Second Appeal is filed against the decree and
judgment, dated 30/10/2009 passed in AS No.14 of 2009 by
the Sub Court, Pattukottai, confirming the decree and
judgment, dated 25/08/2006 passed in OS No.146 of 2005 by
the District Munsif, Pattukottai.
2.The averments in the plaint in brief:-
(i)The suit 'A' schedule property originally belongs
to the second defendant by name Sivalinga Thevar. The
plaintiff purchased the plaint 'A' schedule property
measuring about 24 cents from him, on 20/04/1998 and
03/06/2002 through separate sale deeds. Similarly, on
30/08/2004, he purchased 10 cents from the other parties,
so also 5 cents on 22/11/2004. The second defendant
plotted out the land, which belongs to him. For that
purpose, he purchased two cents for pathway on
19/07/1995. He converted the same as pathway and was
enjoying it along with the common pathway. Only after
plotting out his land, the second defendant sold to the
plaintiff and other persons. Without 'B' schedule the
plaintiff cannot enjoy the properties. Even the second
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defendant himself has admitted the existence of the
pathway in the 'B' schedule property.
(ii)In the 'B' schedule, the plaintiff and other
persons have right of easement. Since other persons could
not join as plaintiff, the suit is filed by him.
(iii)The second defendant is the brother of the
first defendant. They created a sale deed in respect of
'B' schedule to deny the easementary right of the
plaintiff and others. The second defendant put up a gate
on the western portion of 'B' schedule on 20/08/2004.
That was objected by the plaintiff and others. Complaint
was given to the Revenue authorities also. When the
defendant namely the first defendant was requested by the
plaintiff to remove the gate, they refused. So, the suit
is laid for declaring that in the 'B' schedule, the
plaintiff got easementary right and for removing the
construction in 'B' schedule by way of mandatory
injunction and for costs.
3.The statement is filed by the first defendant. The
second defendant remained ex-parte:-
(i)It is denied that 'B' schedule property is the
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right of easement available to the plaintiff. On the
south of the 'B' schedule property, construction was made
and he put up a gate. At the time of construction,
neither the plaintiff nor other persons made objection.
The defendants never admitted that 'B' schedule property
is the pathway available to the plaintiff. Even the
second defendant did not mention the 'B' schedule as
pathway in the sale deed. The pathway mentioned in the
sale deed is referring to the western north-south
pathway.
(ii)Originally, 'B' schedule was purchased by the
second defendant from one Umma Saleema Beevi, on
19/07/1995. The eastern boundary is assessed as a common
lane. That lane ends with 'B' schedule property. So,
there was no pathway in the 'B' schedule originally.
After purchase, the first defendant put up a compound
wall around the property and put up a gate. On the
western of the 'B' schedule property, there is a common
north-south cart track. Only on the west of the above
said cart track, the plaintiff and others purchased.
(iii)As mentioned above, the original owner Mariyam
Beevi sold separate portions to various persons. The
purchasers constructed the house and enjoying. A pathway
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was made for those persons to reach Aranthangi to
Pudukottai main road. Neither the purchasers nor any
other persons of A schedule property has any right to use
that east-west cart track.
(iv)In fact, for the enjoyment of the properties
purchased by the plaintiff and others from the second
defendant, a cart track was made connecting Aranthangi-
Pudukottai main road through survey No.155/1 and other
items. That cart track was used by the plaintiff and
other purchasers from the defendant. Except that north-
south cart track, the plaintiff and others have no other
pathway. So, the 'B' Schedule property was never enjoyed
as pathway by any one.
4.Reply Statement:- 'B' schedule is a portion of the
pathway existing on the east. The second defendant
purchased 'B' schedule only for using as a pathway.
5.Based upon the pleadings of both sides, the trial
court has formulated the following issues:-
(1)Whether the plaintiff is
entitled for declaration that he is
entitled for easementary right over 'B'
Schedule property to reach 'A' Schedule
property?
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(2)Whether the plaintiff is
entitled for mandatory injunction?
(3)To what other relief, the
plaintiff is entitled to?
6.Before the trial court, on the side of the
plaintiff, one witness was examined and 7 documents
marked. On the side of the defendants, one witness was
examined and 10 documents marked. The Commissioner's
report and plan as well as surveyor report and plan were
marked as Exs.C1 to C4.
7.At the conclusion of the trial process, the trial
court dismissed the suit without any costs. Appeal was
preferred before the appellate court namely Sub Court,
Pattukottai in AS No.14 of 2009. It concurred with the
judgement and decree of the trial court and dismissed the
appeal without any costs.
8.Against which, this second appeal is preferred by
the plaintiff.
9.At the time of admission, the following
substantial questions of law were framed:-
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(a)When there is no alternative
pathway available for the plaintiff to
reach the Pattukotai-Aranthangi
Highways except B schedule property; is
the learned Subordinate Judge is right
in dismissing the suit holding that the
plaintiff has not prescribed the
easementary right?
(b)When the plaintiff has claimed
the right of way by easement of
necessity is the learned Subordinate
Judge right in dismissing the suit on
the ground that the plaintiff has not
in continued usage for over 20 years to
prescribe the easementary right by
prescription?
(c)Is the judgment and decree of
the learned Subordinate Judge is
vitiated for not considering of the
oral and documentary evidence in a
proper perspective under Section 96 of
C.P.C?
10.The following additional substantial question of
law was framed, on 18/03/2025:-
1.Whether the courts below are
right in dismissing the suit without
deciding the issue, whether the
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plaintiff is having right over the suit
'B' schedule property to use as a
pathway to reach her suit 'A' schedule
properties by way of easement by implied
grant?
11.Heard both sides.
12.Even though the above said substantial questions
of law were framed on 10/06/2010, during the course of
the argument, the learned counsel appearing for the
appellant stressed upon the principle of easement by
implied grant. So, the above said substantial questions
of law do not require any consideration now. We can
concentrate only the additional substantial question of
law framed, on 18/03/2025.
13.Before we go into the disputed issue, the lie of
the property may be kept in mind. The Commissioner's
report and sketch help the Court. The north-south Avanam
main road lies on the east. From that main road, 12 feet
mud pathway is leading to the western side 16 feet north-
south mud road. The portion marked as 'ABEF' is the
disputed property now. This, according to the plaintiff,
is connecting the western mud road with that of the
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eastern main road. By blocking this portion, the
defendants have prevented the plaintiff from using the
same to reach the Avanam main road.
14.Now, it is the case of the plaintiff that the
second defendant who is the owner of the entire 'A'
schedule property, for the purpose of reaching it,
purchased 'B' schedule property measuring about 2 cents,
on 19/07/1995. After purchasing 'B' schedule property, he
plotted out the western properties and sold to various
persons including the plaintiff. At the time of plotting
out the same, he formed the north-south 16 feet mud road.
So, when the second defendant has purchased 'B' schedule
property for the purpose of plotting out and selling the
western area to various persons, implied in that
transaction is that 'B' schedule can be used by the
purchasers on the west. So, this is the sum and substance
of the case of the plaintiff. According to him, it is
implied grant, since there is no express recital in the
sale deed of the plaintiff and other purchasers, as
mentioned above, implied in that sale is the implied
grant in favour of the purchasers for using 'B' schedule.
15.Now, according to the defendants, absolutely
there is no such a plea in the plaint or during the
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course of the evidence. The plea of implied grant cannot
be taken at the second appellate stage in a surprising
manner that too without any pleadings. He would submit
that implied grant is entirely different from easement of
necessity or express grant. Implied grant will arise, if
at all only when there is any contract by the parties in
this regard. According to them, when specific pathway is
formed for the purchasers by the vendor, 2nd defendant
then there can be no implied grant in respect of 'B'
schedule property.
16.Per contra, the learned counsel appearing for the
appellant/plaintiff would submit that necessary pleadings
for implied grant is available in para 3, 4 and 5 of the
plaint. In para 3, there is no indication to the effect
that at the time of selling, the second defendant agreed
or consented to use 'B' schedule property by the
purchasers. Plaintiff has simply stated that the second
defendant after purchasing 'B' schedule property from his
owner enjoying the same along with the common pathway.
So, according to the appellant, it is sufficient enough
to raise the presumption of implied grant and he is
referring to the judgment of this Court reported in
B.Shyamkumar Vs. Francis George [2009 (4) CTC 750],
wherein the judgment of the Hon'ble Supreme court in the
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case of Hero Vinoth (Minor) Vs. Seshammal (2006)5 SCC 545
is referred and relied, wherein the difference between
the easement acquired by grant and the easement of
necessity is differentiated.
"28.The question whether an
easement is one acquired by grant (as
contrasted from an easement of
necessity) does not depend upon
absolute necessity of it. It is the
nature of the acquisition that is
relevant. Many easements acquired by
grant may be absolutely necessary for
the enjoyment of the dominant tenement
in the sense that it cannot be enjoyed
at all without it. That may be the
reason for the grant also. But easement
of grant is a matter of contract
between the parties. In the matter of
grant the parties are governed by the
terms of the grant and not by anything
else. Easement of necessity and quasi-
easement are dealt with in Section 13
of the Act. The grant may be express or
even by necessary implication. In
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either case it will not amount to an
easement of necessity under Section 13
of the Act even though it may also be
an absolute necessity for the person in
whose favour the grant is made. Limit
of the easement acquired by grant is
controlled only by the terms of the
contract. If the terms of the grant
restrict its user subject to any
condition the parties will be governed
by those conditions. Anyhow the scope
of the grant could be determined by the
terms of the grant between the parties
alone. When there is nothing in the
term of the grant in this case that it
was to continue only until such time as
the necessity was absolute; in fact
even at the time it was granted, it was
not one of necessity. If it is a
permanent arrangement uncontrolled by
any condition, that permanency in user
must be recognised and the servient
tenement will be recognised and the
servient tenement will be permanently
burdened with that disability. Such a
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right does not arise under the legal
implication of Section 13 nor is it
extinguished by the statutory provision
under Section 41 of the Act which is
applicable only to easement of
necessity arising under Section 13.”
17.By pointing out this paragraph, the learned
counsel appearing for the appellant would submit that
even though, in the sale deed execution by the second
defendant in favour of the plaintiff and others, no
specific permission or contract is made with reference to
'B' schedule property, but when there is a specific
recital granting permission to the plaintiff to use the
common north-south pathway, implied in it is the 'B'
schedule property to reach the eastern side north-south
main road. According to him, the interpretation of the
document and consequential inference will amount to
substantial question of law. According to him, there is
no proper appreciation, either by the trial court or by
the appellate court.
18.He would further submit that as per the judgment
of this court reported in Sekar & others Vs. Murugan &
others (2022 0 AIR (Mad) 157), the second defendant
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cannot sell after forming a layout. The relevant para is
extracted hereunder:-
“16.Once a property is alienated
showing the adjacent property as a
pathway, thereafter, the vendor will
not have any right over the said
pathway. The vendor cannot be heard to
contend that he has retained the said
pathway or a portion of the said
pathway so as to alienate the same to
some third parties. The pathway becomes
an appurtenant to the properties sold.
The vendor cannot retain any portion of
the appurtenant separately and alienate
it to his whims and fancies to the
third parties, thereby affecting the
right of the parties who have already
purchased the property with the
appurtenance.“
and would submit that after selling the western area, the
second defendant cannot sell the property namely 'B'
schedule to the first defendant. Now by selling the 'B'
schedule property, he disconnected the pathway linking
the western north-south pathway, which was laid by the
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second defendant at the time of plotting out and the
eastern north-south main road. This, according to the
plaintiff, is not permissible under law.
19.So, the point narrows down is a simple issue as
noted above. Whether the second defendant ever intended
that his purchasers can also use the 'B' schedule
property apart from the pathway laid by him. So, no doubt
that the pathway formed by the second defendant is not
properly used by the purchasers. But that is a different
thing. Simply because it become unused, no right can be
inferred for using 'B' schedule. After laying the road,
the duty of the second defendant is over. It is for the
purchasers to use and maintain the pathway. Non-user
cannot be a ground for claiming implied grant in 'B'
schedule. So, this argument does not hold good.
20.Now, we will go to the sale deed in favour of the
second defendant in respect of 'B' schedule property. It
is dated 19/07/1995, wherein it has been stated that two
cents were sold at the request made by the second
defendant for a pathway. On the western side, there was a
common cart track. On the southern side, the property of
the second defendant as well as the eastern side. This
shows that for reaching out the western area and the
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southern portion, he purchased the same. So, it is to be
remembered that at the time of Ex.B1, the western area
was not plotted out. This is, dated 18/12/2003. In the
four boundaries, the west is shown as pathway belongs to
his purchasers. On the southern one Mariyam Beevi and the
second defendant namely Sivalinga Thevar are situated.
Four boundary clearly indicates on the south of 'B'
schedule property, the property belongs to the second
defendant and one Mariyam Beevi were available. So, this
clearly indicates that now for the purpose of plotting
out the western area, 'B' schedule property was purchased
by the second defendant. Now after purchasing 'B'
schedule property, he plotted out the western area by
forming north-south pathway for the use of the
purchasers. So, this will not confer any right in the
form of implied grant to the purchasers.
21.Now we will go to the oral evidence of PW1 as to
see whether anything can be inferred from his evidence to
suggest that implied grant was raised by him. The Power
of Attorney of the plaintiff has stated that only because
the 'B' schedule property was purchased for the purpose
of connecting the western area, the plaintiff and others
purchased the property. Without using the 'B' schedule
property, the purchasers cannot enjoy the 'A' schedule
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property. In para 7 in the chief in affidavit, he has
specifically stated that at the time of purchasing 'A'
schedule property, it was confirmed that 'B' schedule is
also the pathway. Only on the confirmation, the 'A'
schedule property was purchased by the purchasers.
22.If it is really so, the plaintiff ought to have
compelled the second defendant to make a specific recital
in the sale deeds to that effect. But he failed.
23.It is also seen that the pathway leading from
Avanam main road did stop with the property of Umma
Saleema Beevi. Thereafter only, the second defendant
connected his western portion through 'B' schedule
property as mentioned above.
24.The second defendant remained ex-parte. Only the
first defendant contested the matter. He would say that
on the south of the 'B' schedule, in April 2000, he
constructed a house, put up the compound wall on all
sides. At the time of raising the compound wall, none
made any objection. He would further say that 'B'
schedule property and the northern property originally
belonged to one Mariyam Beevi. She sold separate portions
to various persons. Only for their use, the pathway was
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made connecting the eastern north-south main road. The
evidence of PW1 that the second defendant confirmed that
'B' schedule property can be used by the purchasers is
beyond the pleadings. Absolutely, there is no evidence on
record except the evidence PW1 in this regard.
25.So, the circumstances clearly indicate that after
the purpose was over, the second defendant thought it fit
to sell the 'B' schedule property to the first defendant.
The purpose means the purpose of making plotting out of
the western area. After forming a specific north-south
right exclusively for the use of the purchasers, then the
purpose of 'B' schedule property became unnecessary. So,
he sold the property to the first defendant. He put up a
construction and compound wall, etc.
26.More over, PW1 being the Power of Attorney of the
plaintiff, he can speak only to the facts, which are
personally known to him. But whether PW1 was present when
the alleged confirmation was made by the second defendant
is not known.
27.The case put up by the appellant that it is
implied grant is without any evidence. This plea cannot
be approved. So, the additional substantial question of
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law is answered that the appellant has failed to
establish that the plaintiff is having right over 'B'
schedule property by way of implied grant.
28.So I find no perversity in the finding recorded
by the appellate court as well as the trial court.
29.In the result, the second appeal fails and the
same is dismissed with costs, confirming the judgment and
decree of the courts below.
29/04/2025
Index:Yes/No
Internet:Yes/No
er
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To,
1.The Sub Judge,
Pattukottai.
2.The DistrictMunsif,
Pattukottai.
3.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
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G.ILANGOVAN, J
er
29/04/2025
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